In a motion filed yesterday in the Bergdahl case and available here, Sergeant Bergdahl’s defense team seeks to disqualify General Abrams as convening authority for three reasons.

First, because General Abrams served as the principal military assistant to the Secretary of Defense before his current assignment, and was therefore involved in the Bergdahl search and recovery operations, the Defense asserts that he is a fact witness who cannot also serve as convening authority.

Second, General Abrams apparently did not consider the defense comments to the Article 32 preliminary hearing report. According to the motion:

When interviewed, [General Abrams] claimed that [the defense submission] was written for “the lawyers” and suggested that if the defense wanted him to read the submission, it should be written in “plain-speak.”

Mot. at 7. The defense calls this “preposterous” and asserts that it requires General Abrams’ disqualification and a new referral decision. Mot. at 7.

Finally, the motion asserts that:

GEN Abrams admitted having received over 100 letters about SGT Bergdahl’s case. These were addressed to him and sent through the mail. He said they spanned the full spectrum of opinion, and came from all types of people and on both sides of the case. When defense counsel asked to see the letters, GEN Abrams revealed that he had destroyed them by burning.

Mot. at 7 (emphasis added).

One can only hope that the General was not so reckless as to destroy the only copies of the letters (which, of course, were official records).

The defense also asks that any court-martial be prohibited from adjudging any punishment in the event Bergdahl is convicted. Bergdahl recently also sought this remedy in response to Senator McCain’s comments on his case (discussed here).

26 Responses to “Bergdahl defense seeks to disqualify General Abrams as convening authority”

Well, I’ll not engage my snark-gun here but while I don’t think any of these actions require a new referral they don’t speak very well of GEN Abrams personally IMO. He’s a 4-star General, I would think he could read the defense submissions.

“GEN Abrams’ inexcusable and baffling conduct plainly disqualifies him from serving as a CA and requires that the referral be vacated so some officer who will take the time to read defense submissions and not destroy evidence can function on LTC Visger’s measured report.”
Typical unreasonable defense demands.

ZS — So if my baby brother decides that the Army isn’t treating me right, and writes a 5000-page treatise explaining that I should be promoted to general right away, and sends that to TJAG….she has got some kind of obligation to keep it?

Public officials are getting communications from the general public all the time, especially when they do things that make the news, but it is not “obvious” in a “what-planet-are-you-on” way that every scrap of paper (or all-caps e-mail) sent in by a disgruntled member of the general public has become an official record, or that these officials are obliged to save them instead of putting them into the trash.

Now that may be the law, but my question is, can you point me to some authority for it, or at least to a place where I can find that out for myself?

Zack,
High-ranking Commanders get countless unsolicited letters from the public asking for/recommending action on every imaginable issue, many of which are/could be considered official actions. Are you saying that the Commander is required to maintain those correspondence? Are there any other requirements, such as documenting. replying, etc.? While personally burning these letters seems like an awfully strange decision, flag aides around the world regularly throw letters like these in the trash.

I’m ignorant as to the precise definition of what a “record” is, so I googled it. I came up with this link. Straight from the horse’s mouth, I suppose. I italicized what appears to be the critical phrase. The agency gets to decide ultimately whether something is a record worthy of preservation. Could the United States Army, through the person of Gen. Abrams or his SJA, decide that a pile of unsolicited letters regarding a pending court-martial are not “appropriate for preservation”? Sure. One can quibble all day long about the wisdom of said action, but absent some governing statute or directive requiring preservation of those destroyed items, there’s nothing here.

I also note, though I am not Army, that the name Abrams likely carries with it considerable weight and deference within the Army, including its courts. There is a bit of history there.

What is a record?
Records are defined in various statutes, including the Federal Records Act and the Freedom of Information Act. The definition that follows is from the Federal Records Act that governs agencies’ records management responsibilities.
Records include all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them (44 U.S.C. 3301).
Many of the key terms, phrases, and concepts in this statutory definition of records are defined in CFR Part 1222.12.

TC,
“While personally burning these letters seems like an awfully strange decision, flag aides around the world regularly throw letters like these in the trash.” – Burning probably isn’t that strange of a decision. I would suppose it is likely that he placed them in a burn bag, which is often the case when there is personal information in a document (such as address, phone number, etc.) When the burn bag was disposed of by the staff, he considered them “burned”.

@cheap seats, that was my suspicion as well; it sounds wonderfully scandalous to say the GEN burned them if one imagines him dramatically throwing them into a fireplace and watching them turn to ash, but a lot less so if he places them in a bag along with lots of other stuff to be disposed of as a matter of course.

That’s a fair point, and probably should have occurred to me. I’ve never used burn as a verb in that scenario. It doesn’t change my point, however, that tossing/shredding/burning these types of letters from the public happens all the time, and I’m not aware of any requirement to maintain them.

Can’t speak for the other Branches, but the AF has a reg on this based upon a statute that Admiral Shovell cited. AFI 33-322, at para. 2, states in relevant part:

Consistent with the definition of “records” used in 44 U.S.C. § 3301 records include “all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and is preserved or is appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policy, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.”

DoDI 5015.02 defines “record” as:

All books, papers, maps, photographs, machine-readable materials, and other documentary materials, regardless of physical form or characteristics, made or received by an USG agencyunder federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that federal agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the USG or because of the informational value of the data in them (in accordance with section 3301 of Reference (c)).

I would think with a little bit of research, that an argument certainly could be made that the statute and implementing DoDI required the letters be preserved in the context of an on-going court-martial. Again, limited to the AF, the rule was presumptively “preserve” unless the Records Management Officer certified that they were not required to be retained, which usually was accompanied by a request for a “Legal Opinion” on the particular documents.

Like any measured attorney, I think the balancing test is two fold:
1. Was it a mistake? I think the answer is that it may or may not have been a mistake. As I mentioned previously on this topic, it’s puzzling for him to allegedly destroy the letters, but they aren’t evidence nor are the automatically official correspondence. I agree with the others that flooding the CA with fan mail and hate mail does not by itself give these any “official” capacity. Taken to the extreme what if someone sends the CA a playboy pinup. Is that now an “official record” or just something to throw away? None of these folks were going to be witnesses. I find it remarkable that the SJA didn’t brief GEN Abrams on the case. My gut tells me there must be a mistunderstanding. However, even if true, the CA can refer independent or even in disagreement with the SJA, right? I come down on the side that while odd, I don’t think he made legal mistakes. Imprudent, and puzzling, but not errors.
2. Let’s assume worst case. Gen Abrams destroyed the letters, which are official correspondence (which they likely aren’t). They aren’t and never were “evidence” in any capacity. BB will have opportunity to call or present any evidence he wishes, at trial. Next, let’s assume he never talked to a single lawyer. He still, by virtue of his authority, can refer charges based on his understanding. So, even assuming he did make mistakes, none of it would undermine his ability and authority to refer. Let’s not forget that IO recommendations are not binding whatsoever. The “mistakes” were not material to the outcome. Based on open source evidence alone, and not technical legal-ese, there is some evidence of a crime enough to send the case to a trial.

I chuckled a bit at the nefarious imagery of Gen Abrams with a candle and an evil grin, reading each letter individually in the small hours, then burning them one by one holding an antique candle stick as flames flicker and wax drips onto the Victorian era candelabra. Using a letter opener, and slowly cutting open the next piece of tear soaked fan mail, only to have this one be read and meet a similar fate…
Yes, sounds like he did what everyone handling sensitive/personal/work related documents does when it’s time to dispose of them. Wad them up and throw them into the burn box under your desk, for collection by a junior Soldier, where they make their way into the furnace or burn pit, by the tons of documents.
In reality, the biggest crime here is that they probably wasted paper, fuel in delivery, only to turn into a cancer causing carcinogen which some E4 will get 10% VA disability for in a decade for having manned the burn pit.

Having read the DoDI noted above, it took me all of 2 minutes to find the Army Regulation that would appear to govern all of this. AR 25-400-2 is the controlling reg in the Army. It would appear to at least (hopefully) ensure that this motion is not dismissed as frivolous or de minimis. Para. 1-1, provides in relevant part:

b. Furnishes the only legal authority for destroying nonpermanent Army information.

b. Sections 3301–3314, Title 44 United States Code (44 USC 3301–3314), establishes the legal basis for the disposal of records of the U.S. Government. The Director, USARMDA(JDRP – RDR), 7701 Telegraph Road, Alexandria, VA 22315–3860, develops retention and disposal authorizations that meet Army needs and obtains approval from the Archivist of the United States. Approval by the archivist is legal authority for the retention anddisposal of all Army records.

Para. 1-8, adds an interesting twist:

“b. The maximum penalty for the willful and unlawful destruction, damage, removal, or alienation of Federal records is a fine, 3 years in prison, or both (18 USC 2071).”

The issue here is whether or not there was anything relevant in any of those letters, e.g., comments as to leniency could qualify as Brady material, etc., and so unless some staff officer kept copies of those letters, I suspect that the General may get a chance to testify about all of this, adding yet another bizarre twist to an already bizarre case.

From the cheap seats it appears the fan mail and hate mail equate to zero evidentiary value. So the destruction is of no consequence.
Would appear like a BB windfall if there is some ramifications. The lesson would then be to bury the future CAs with hate mail and lewd pictures and have drawings made by 3rd graders sent by the truckloads in hopes that some are not turned over or are destroyed, only to later claim Brady violations… Taken to the extreme it’s pretty much nonsense. Just like the underlying claim that the fan mail and hate mail have any evidentiary value, based on open source reporting.

@Concerned Defender: Broaden your focus a bit – what if one of the letters to the general was from a group such as the American Ex-Prisoners of War? And what if they denounced Bergdahl to the fullest and demanded a full and vigorous prosecution, albeit based upon inaccurate media accounts, on behalf of all “real” POW’s? And if that was what moved the CA to not follow the I.O.’s recommendations, why wouldn’t the defense be entitled to both know about that (since it wasn’t part of the official record) and perhaps rebut it? This is just a hypothetical on my part, but is certainly conceivable these days.

I don’t know if you’ve ever been in a position to advise a CA, but they frequently get letters from supporters such as “concerned” parents, grand-parents, etc. They also get letters from “victims’ families,” and in this case, what if the family of one of the Soldiers killed while looking for Bergdahl, sent an emotional letter to the general requesting “justice” for the sake of their dead son? And what if the general after reading such a hypothetical letter, thought to himself, “you know, they’re right,” and thus decided to press with the GCM?

The general made a legal decision, i.e., to “burn” the letters, apparently without seeking any legal input about the potential consequences of that decision. That is the issue. Had he not destroyed them, but rather given them to his JAG/Legal Advisor for proper “disposition,” there would be no issue here. And yes, I’ll agree with your premise – to a point – that probably 90% of those letters were in fact totally irrelevant to anything, but it’s the 10% that we don’t know about that could be a problem, and that is something that a 4 Star general should have anticipated imho.

DP, that’s the part that I find weird. Ordinarily, the SJA would give the packet to the CG. He/She would review it, make a decision, and hand the packet right back to the SJA. If these letters weren’t part of the packet, well that’s different, but one would think he would tell the SJA, I received these letters, what do I do with them, and the SJA would say, ok, well you can consider them if you want, but you don’t have to, but whatever you do, when you are done, please give them to me. I’m guessing he skipped the tell your SJA part about these letters until after they were thrown out/burned? I don’t know.

Again, I can see possibilities of Brady and evidentiary value as others have noted but without evidence…(of course it may very well lead to the CG appearing and testifying as to the contents of the letters in a hearing).

Vulture: You be nice to Mr. Brady, he probably just upgraded his phone at the expiration of his cell plan like anyone else would. Nothing to see here, move along. For what it’s worth, I think Roger Goodell with his witch-hunts and disciplinary over-reactions would be a perfect fit as a modern-day general court-martial convening authority.

Consider this. General Abrams watches a few minutes of MSNBC at the airport and a commentator opines that BB is innocent. Shall Gen. Abrams get a copy of the video and present that to the defense? Later, he reads the newspaper op ed and there are 10 opposing views and arguments about the disposition of BB’s case. Is the General supposed to clip this out and send it to defense?

Well it’s an interesting discussion, and I applaud the defense for pursuing it. However, a quick glance at the definition of evidence and at MRE 401, et al (based on the FRE 401 et al):
Definition: (short version) a fact that makes an assertion true or false.
Opinion letters to the CA are not evidence…
401
““Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Are these 100 letters “evidence.” No.
402
“All relevant evidence is admissible… Evidence which is irrelevant is not admissible”
Do these 100 letters “spanning the spectrum of opinions” have any relevancy? No.
Rule 403 is a clear exclusion based on prejudice, confusion and waste of time. 100 letters of fan mail and hate mail are exactly this – prejudice, confusion, and waste of time.

@Concerned Defender – I’m not trying to be rude or snarky, but you are missing the point. Those letters (whatever they contained) were sent to the general in his official capacity as Convening Authority. They were not some public, open-source item such as a newspaper op-ed, that the defense, in theory, have equal access to. They weren’t sent to the general to wish him a “happy birthday,” or anything else personal – they were mailed to him at his official, government office, about a specific case – Bergdahl.

“Opinion letters” may indeed be “relevant” if in fact they influenced or impacted the general’s decision on whether or not to refer the case and then, to what forum. But, as Stewie aptly suggests, why burn them if they were meaningless?

And your MRE 401 analysis is flawed because the general is not the one that makes that assessment – it is the Military Judge, who will either need copies of the letters (which presumably do not exist), or the general is going to be on the witness stand for a while explaining what he remembers about the contents of the letters that he read vis-à-vis the Bergdahl case.

I don’t find your comment rude or snarky, and it’s a novel and interesting discussion.
Let’s skip the letters, and say one day the general is at a VA luncheon, and several vets approach him and offer their unsolicited opinions on disposition. Is this “evidence” or discovery? Where does it end? Maybe his wife offers an opinion, shall the General put all of these opinions in MFRs for Defense to justify his referral thought process?
Let me ask this: Do any of the letters impact anything on the merits, or make any element more or less likely to be met, or establish a defense? If as the General has stated, they were opinions across the broad spectrum, then the answer would be “no, they do not have any impact on the merits.” Stated otherwise, let’s assume that all 100 people who wrote the letters were put on the witness list to offer their opinions of disposition. Would the MJ allow any of them to testify as to their opinion about the merits? Unless they offer a defense, then the MJ would deny them from testifying.
The General should simply (truthfully) say words to the effect that based on the elements from the UCMJ, as applied to the facts, I believed that there was evidence of high level crime(s) and that’s why I sent it to the GCM. None of the letters had any impact on my decision making applying cold hard facts to the UCMJ. He reviewed the 32 findings and recommendations and disagreed with them and believed there was evidence of a crime(s) sufficient to warrant a GCM – backing it up with specifics if necessary such as BB’s own admissions in various interviews. End of story. The letters were irrelevant and had no bearing on his factual decisions, so he put them in a burn box, which was presumably sent to the burn pit.

But, why are we ignoring his response, if you may call it that, to the defense submission on the 32 as being too lawyerly. It appears that this CA acting in a quasi judicial role decided to ignore and not read the defense response to the 32. As an SJA I would have told him to read the submission, ask me questions, and ultimately be in a position to say that he “considered the defense submission” along with all of the other information provided–with an MFR to document the event. It’s fairly simple. But that does not appear to be what he said or did; apparently he blew off the defense submission. I’m of a mind to think this is the more serious issue than whether or not he trashed the letters. IMHO. That’s the way I would have protected my boss. A CA doesn’t have to agree with a defense submission, but he / she owes the system consideration of it, for whatever weight it may give to the referral decision.

Let’s ask this another way. The defense and trial submit a motion on an issue. The MJ says the defense argument is too lawyerly and too much legal mumbo jumbo, so I have decided to disregard it. What would we say? At trial? On appeal?

Colonel Nathan Jessup: Take caution in your tone, commander. I’m a fair guy but this xxxxxx heat is making me absolutely crazy. You wanna ask me about code reds? On the record, I tell you I discourage the practice in accordance with the Commanders directives; off the record, I tell you it`s an invaluable part of close infantry training. And if it happens to go on without my knowledge, so be it. I run my unit how I run my unit. You wanna investigate me? Roll the dice and take your chances. I eat breakfast 300 yards from 4,000 Cubans that are trained to kill me, so don`t think for one second that you can come down here, flash your badge and make me nervous.

Figured I’d lighten the mood a bit…
@ Phil – is there an actual requirement that the CA review any documents submitted to him by defense prior to referral? I’ve submitted my share, and rarely recall getting any acknowledgement that it was considered. Perhaps the standard denials for Chapter 10s, deals, etc. I find it simply implausible that the CA didn’t meet with the SJA and discuss the case. I wonder – it seems there would be something in the record of a denial of a Chapter 10 (if submitted) or some evidence of the SJA having actually briefed the CA, some paper trail, an SJAR, or something of the sort…

A good discussion. I still have my doubts that a letter from a disgruntled retiree or a news-reading teen on summer vacation or a bunch of college kids who sign a petition was really received “in connection with” an official matter. My inclination, without further authority, is to read that “in connection” as applying to something from a party who has some kind of standing in the matter. Like an e-mail from the SJA or counsel. In short, I’m not convinced that a letter sent to someone in his official capacity (under the Army regulation) becomes an official record unless it’s sent from someone who has something to do with it.

The implications of a broader reading are not very pleasant…there are a lot of strange and lonely people out there, and some of them will write volumes of incoherent scribble that no judge, commander, or cabinet secretary has room to save or time to read. It’s hard to believe that the Department of the Army intended to saddle its commanders with that.

I doubt we’ll a ruling on that on this motion, because the defense didn’t go the “official records” route…they simply said that the pro-Bergdahl letters might be used as “character letters” on his behalf.

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